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AILA Backgrounder on the Draft “PATRIOT Act II”

AILA Doc No. 03022647 | Dated February 26, 2003

AILA BACKGROUNDER

“DOMESTIC SECURITY ENFORCEMENT ACT OF 2003” (a.k.a. PATRIOT Act II)

Draft legislation prepared by the Department of Justice (DOJ) and recently
leaked to the public contains a number of provisions that would diminish
significantly the already compromised due process rights of lawful permanent
residents and other non-citizens. Under the pretext of fighting terrorism and
enhancing homeland security, this draft legislation, entitled the “Domestic
Security Enhancement Act of 2003” (DSEA), proposes to, among other things:
expand significantly the Immigration and Nationality Act’s expedited removal
provisions, enhance criminal penalties for minor immigration violations, expand
the Attorney General’s authority to bar and remove non-citizens from the U.S. on
national security grounds, and authorize removal of aliens even to countries
whose governments are not recognized by the United States.

While the Domestic Security Enhancement Act has not yet been introduced in
Congress, the draft that was leaked indicates that the DOJ continues to explore
ways to amplify its law enforcement and intelligence gathering authorities. Such
authorities were expanded significantly in the wake of September 11 when
Congress passed the PATRIOT Act. The DSEA would broaden the executive branch’s
discretionary powers still more by further marginalizing the due process rights
of non-citizens, while circumscribing judicial checks on executive branch
activities.

The expansion of authority proposed by DOJ in this draft raises important
concerns given that the House and Senate Judiciary Committees, charged with
oversight of the DOJ, have criticized the agency for failing to clearly and
adequately explain how it is implementing the PATRIOT Act’s provisions.
Meaningful congressional review of the impact of the PATRIOT Act’s expansion of
executive powers on the rights of immigrants is vitally necessary before
embarking on an initiative to further shield executive decision-making from the
checks and balances that are the hallmark of our system.

If enacted, the DSEA would trigger the following additional, unacceptable
encroachments on the rights of foreign nationals in the U.S.:

Authorize Secret Arrests. Section 201 would prohibit disclosure of
the names of individuals detained in the course of an international terrorism
investigation, including individuals who have been detained for minor
immigration violations. As we have seen already since the September 11
tragedy, huge number of foreign nationals have been arrested and detained
under a veil of secrecy for minor immigration infractions that have nothing to
do with terrorism simply because of their ethnic or religious background.
Section 201 attempts to statutorily legitimate the secretive nature of these
pretextual detentions.

Open Immigration Files to Local Police. Section 311 would undermine
trust between police departments and immigrant communities by opening
sensitive visa files to local police for the enforcement of complex
immigration laws about which they often know little. This proposal has
surfaced despite the fact that many local police departments already have
announced their opposition to enforcing federal immigration laws.

Strip U.S. Citizenship for Associational Activities. Section 501
would expand the grounds for expatriating U.S. citizens to include joining,
serving in, or providing material support to a designated terrorist
organization. Rescission of U.S. citizenship could obtain even when the
‘material support’ is simply a lawful charitable donation to further the
lawful activities of a designated organization. Targeted individuals
potentially could find themselves consigned to indefinite detention as
undocumented immigrants in their own country.

Enhance Criminal Penalties for Minor Immigration Violations.
Section 502 would enhance criminal penalties for a variety of immigration
offenses including such innocuous violations as failure to carry registration
documents (e.g. a permanent resident alien card) and failure to notify INS of
an address change within 10 days. The manifest incoherence of the address
change policy is highlighted by the agency’s admitted lack of capacity to
match the required notifications of address change to a person’s file.

Authorize Summary Deportations. Section 503 would authorize the
Attorney General to deny admission to or remove any non-citizen whom he “has
reason to believe” poses a danger to national security interests. Because of
the judicial deference accorded to executive branch national security
determinations, this unexacting “reason to believe” standard would provide the
Attorney General with virtually unreviewable license to make subjective,
adverse admission and removal determinations. Under this provision, even a
lawful permanent resident could be denied entry to the U.S. or deported
without having violated any law and without ever knowing the basis for the
government action.

Subject Lawful Permanent Residents to Expedited Removal. Section
504 would expand the bases triggering expedited removal and for the first time
would apply these procedures to lawful permanent residents for the first time.
This provision would apply retroactively and cover offenses committed prior to
enactment, thus unfairly undermining settled expectations. It also would limit
appellate review of an expedited removal order while completely eliminating
habeas corpus review. The unprecedented elimination of habeas corpus review is
designed to insulate the Attorney General’s expedited removal decisions by
preventing federal courts from correcting unlawful actions by immigration
officers.

Reduce Time to Depart After Removal Order. Section 505 would
clarify the continuing nature of the offense of failing to depart the U.S.
after a removal order is final. It simultaneously would reduce the period of
time in which an alien subject to such an order must depart from 90 days to 30
days. This shortened departure window will create significant hardship for
long-time permanent residents who must organize their entire life affairs
prior to departing and simultaneously make arrangements to live in a country
to which they no longer have ties.

Authorize Removal to Non-recognized Countries. Section 506 would
authorize removal of an alien to a country other than the individual’s country
of citizenship, nationality, birth, or residence when removal to such country
would be “impracticable, inadvisable, or impossible”. Moreover, it would
permit removal to countries whose governments are not even recognized by the
U.S.

AILA’s POSITION: AILA strongly opposes each of the proposed changes
outlined above. In the aggregate, this proposal fails to promote its stated
goals of combating terrorism and enhancing security. To the contrary, the
fundamental lack of fairness and the abrogation of long-standing due process
principles embodied in this legislation ultimately could subvert the very
objectives it was designed to facilitate. Tearing families asunder and expelling
long-time residents of the U.S. without a modicum of due process violates our
traditions and will serve only to create an atmosphere of distrust,
apprehension, and resentment throughout the immigrant communities in this
country. Alienating significant portions of the populace will undermine the
cooperation law enforcement authorities regularly identify as a critical
component to successful enforcement interdictions.